Sujit Suman vs The Chairman, Statt Selection ...
2021 Latest Caselaw 4356 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.1268 of 2019
                                             In
                    Civil Writ Jurisdiction Case No.14292 of 2015
     ======================================================

Sujit Suman, Son of Rajendra Paswan, Resident of Village- Bari Yusufpur, P.O.- Hajipur, P.S. Industrial Area, District- Vaishali.

... ... Appellant/s Versus

1. The Chairman, Staff Selection Commission, Block No.12 Central Government Office Complex Lodhi Road, New Delhi.

2. The Chairman, Staff Commission (CR), 21-23 Lawther Road, Allahabad, (U.P.)

3. The Secretary, Staff Selection Commission (CR), 21-23 Lawther Road, Allahabad, Uttar Pradesh.

4. The Union of India, through the Lt. Colonel, DADMS, Project Himank, RMO GREF Centre, Dighi Camp. Pune-411015.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. P.K. Shashi, Sr. Advocate Mr.Brisketu Sharan Pandey, Advocate Mr. Anirudh Kumar Sinha, Advocate Ms. Kumari Shubham, Advocate For the Respondent/s : Mr. Dr. K.N. Singh, ASG Mr. Rajesh Kumar Verma, Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR)

(The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 27-08-2021

Ministry of Road Transport and Highways,

Government of India, New Delhi is added as party respondent

no. 5 in this LPA. Registry to make necessary amendment. Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

Heard learned counsel for the parties.

This Letters Patent Appeal has been filed by the

appellant/petitioner against the judgment and order dated

03.09.2019 passed by learned Single Judge of this Hon'ble

Court passed in C.W.J.C. No. 14292 of 2015 dismissing the writ

petition.

Briefly stated, the facts of the case is that the Staff

Selection Commission published an advertisement for combined

Higher Secondary Level (10+2) Examination, 2013 which was

two tier examination consisting of written examination followed

by typing test/skill test and it was clearly instructed that

preference for Ministry/Department/Office will be taken at the

time of skill test and selection of candidates will be made as per

merit position and option opted by the candidates.

Appellant appeared in the examination and passed

in the written examination and was declared qualified for

appearing in skill test and accordingly he was directed to submit

his preference for Ministry/ Department/ Office as per his

choice and final results were declared in which appellant was

declared qualified for the post of Lower Division Clerk and was

allotted Ministry of Road Transport and Highway as per his

merit position and preference opted by him accordingly his Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

candidature was forwarded to Ministry of Road Transport and

Highway for his appointment.

As per service rules, a candidate selected has to

undergo medical test before his appointment and he has to be

declared medically fit by the Medical Board against the civil

post as the appointments were being made against the civil post

under various ministries/departments/offices of the Central

Government.

It is stated on behalf of Staff Selection

Commission that appellant was recommended to Ministry of

Road Transport and Highway as per his merit cum preference

and thereafter it is within the jurisdiction of the concerned

department to post the recommended candidate in any office

attached or subordinate office.

Appellant gave various options, out of which his

option for appointment as Lower Division Clerk in Ministry of

Road Transport and Highways was accepted and accordingly

recommendation was sent for the post of Lower Division Clerk

in the Ministry of Road Transport and Highways.

It appears that Ministry of Road Transport and

Highways allotted appellant Border Road Organization (General

Reserve Engineer Force) which is a Central Government Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

Organization and is governed by Central Services Rules,

however, certain provisions of Army Act, 1950 are also

applicable to the members of force. The Final Selection of the

candidates recommended by Staff Selection Commission is

subject to medical fitness test by the Medical Board detailed by

Head Quarters, Director General Border Road. Physical

efficiency Test, Physical and Medical Standard for the post of

Lower Division Clerk in BRO is of Higher Standard than those

as required in Ministry/Department/Office of Central

Government.

Appellant has brought on record by way of

supplementary affidavit filed in LPA as Annexure-A1 the list

published of selected candidates of the SSC Examination, 2013

giving details of every selected candidates alongwith the

department for which they have been nominated, the name of

appellant finds its place at serial no. 437 under the SC category

and has given names of SC candidates much below in the merit

list, who have been appointed in different departments/offices of

Government of India on the basis of recommendation made by

the SSC after undergoing medical examination conducted for

civil post, however, appellant was recommended by either SSC

or Ministry of Road Transport and Highways for his Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

appointment in BRO (GREF)which requires medical fitness as

that of armed forces personnel, which was improper, unjust and

unfair.

Annexure- 4 as enclosed in writ petition is a letter

dated 02.05.2015 issued from GREF Centre, Pune and

addressed to petitioner with respect to cancellation of his

candidature for the post of LDC on the ground of medical

unfitness by the GREF and dossier of appellant was forwarded

to SSC for further necessary action.

Although, the Staff Selection Commission in their

counter affidavit filed in LPA in paragraph no. 10 has stated

that commission declared the final result of the said examination

in which the appellant was declared qualified for the post of

Lower Division Clerk in the Ministry of Road Transport and

Highways as per the merit position of the appellant and

preference opted by him for allocation of

Ministry/Department/Office as per his own choice, accordingly

the dossier of the appellant was forwarded to Ministry of Road

Transport and Highways for issue of offer of appointment.

Ministry of Road Transport and Highways was not

made a party respondent either in writ petition or in the LPA, as

such, correctness of said statement could not be ascertained. Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

However, from Annexure-4 of writ petition, it appears that the

recommendation of appellant was made in BRO (GREF) and

after declaring appellant medically unfit, the dossier of appellant

was returned by the BRO (GREF) to the Staff Selection

Commission. If the Ministry of Road Transport and Highways

had sent dossier of appellant to BRO (GREF) for his

appointment on the post of LDC then after finding him

medically unfit, the GREF (BRO) ought to have returned the

dossier of appellant to the Ministry of Road Transport and

Highways for further action from their end.

Appellant was subjected to undergo medical

examination by the BRO in which he was declared unfit with

respect to medical standard as required in the BRO (Armed

Forces), his appeal was also dismissed. The relevant part of the

declaration to be made by candidate in course of medical

examination is extracted below:-

"I declare that

(a) I have never been rejected medically as unfit for GREF/Armed Force/Para Military forces before. None of my family members suffer from diabetes, TB Leprosy, Fits or mental problems. I have never been operated upon nor hospitalized for any injury. I have not been tested for HIV (AIDS Virus)/Hepatitis B or C. I do not suffer from STD. I do not suffer from any discharge from the ears. I do not have enlarged glands or swelling in the neck. I have had no fever for prolonged duration accompanied by cough and spitting of blood or loss of weight. I have not suffered from joint pain. I do not have night Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

blindness. I do not suffer from epilepsy (fits).

(b) I further certify that :-

(I) I will be medically examined as per the standard required for recruitment in GREF.

(ii) The medical Standards for GREF are at variance as compared to the civil medical standards because of service requirement of serving in any part of the world, in any type of weather and terrain.

(iii) The Recruiting Medical Officers and other specialists of BRO/Armed Force are the final authority for such matters for declaring me FIT/UNFIT."

From the facts as gathered, it appears that

appellant who was a scheduled caste candidate has wrongly

been denied appointment on the post of LDC as he was found

medically unfit by BRO (GREF) in which standard of medical

fitness is that of armed forces personnel and appellant was

selected for appointment as LDC under Government of India

against Civil Post and candidates who secured less marks than

appellant were appointed after being found medically fit

against civil post.

The Secretary, Ministry of Road Transport and

Highways is directed to consider appointment of appellant

against the civil post of LDC where medical fitness is required

as that for a civil post within sixty days from the date of

receipt production of a copy of order passed by this Court for

which he may summon dossier of appellant from SSC or Patna High Court L.P.A No.1268 of 2019 dt.27-08-2021

GREF wherever it is lying. Appellant shall also be entitled for

his seniority and continuity of service from the date candidate

junior to him was appointed against civil post in the Ministry

of Road Transport and Highways. There shall be no order for

back wages. However, if Secretary finds that appellant is not

entitled to be appointed then he should pass a speaking and

reasoned order to be communicated to the appellant through a

registered post/speed post on his address. Liberty reserved to

appellant to assail said order, if any, before appropriate forum.

The order dated 03.09.2019 passed in C.W.J.C.

No. 14292 of 2015 passed by the learned Single Judge is set

aside and LPA is disposed of in terms of direction as indicated

above.

(Sanjay Karol, CJ)

( S. Kumar, J) veena/rajiv-

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